Initial Reflections on the last 30 years of Open Closed Government in Tasmania

Rick Snell

 

Preliminary note

This was drafted as a summary of my thoughts about 30 years of Freedom of Information and Right to Information in Tasmania. I was keen to keep it accessible as possible. I may revisit and expand the analysis and provide evidence, referencing and more detailed explanations at a later date.  As I type this it occurs to me that the Tasmanian Government, bureaucracy and Ombudsman have failed to celebrate the 30^th anniversary of Freedom of Information and Right to Information in Tasmania. A telling silence.

 

 

Introduction

Three decades ago, the mission we chose to accept in Tasmania was to have a transparent and open government, supported by strong legislation and a bureaucratic culture dedicated to open government.

 

Thirty years later the mission appears to have been a failure. The original goals appeared achievable and not all that revolutionary. Successive governments, and the service that supports them, managed to keep the status quo despite successes in legislating a reinforced requirement of openness and renewing that parliamentary mandate for open government in 2009.

 

There is a chance to revive the mission, but we need to focus on some key achievable goals:

 

1. Recommit to a culture of openness, not fear, regarding the public seeing information that effects citizens lives;

2. Ensure that public officials, especially those whose role it is to promote transparency, lead by example;

3. Be aspirational – set transparent targets for releasing government information when requested (and clear processes for resolving disputes where the release is contested) and have plans to recover if the targets are missed; and

4. Leadership in words and deeds by the Premier, the Ombudsman and heads of agencies.

 

This will not take legislative change – although it might help;  instead it will take commitment, ambition and a culture of openness working in the best interests of all Tasmanians.

 

 

Strong resistance and indifference to the mission

 

What we sought 30 years ago, was to make Tasmania more democratic, make Ministers and public servants more accountable, and allow and encourage citizens to participate effectively in policymaking. In my view, we have abandoned the mission. Too many journalists, members of parliament and citizens have thrown up their hands and walked away from the system.

 

We had wins, including the major intervention and revamp put in place by the Right to Information Act in 2009. Yet very little has changed in the dynamics, processes and outcomes of Freedom of Information (FOI)/Right to Information (RTI) requests.

 

Some information has found its way into the public domain, often after delays of many months, indeed in some cases, years. By the time we see the information that would allow effective participation in open government, there is no longer the time or opportunity to allow citizens to engage in the decision making process.

 

The FOI Act, was a critical element of the 1989 Labor-Green Accord. This agreement was imposed on a public service that enjoyed all the advantages of secrecy. We underestimated what would be needed to dismantle this culture.  The writing was on the wall from the beginning.

 

The FOI Act was amended prior to commencement. Government and bureaucratic leadership undermined the Act, in part by eliminating the capacity of the Ombudsman to release otherwise exempt information in the public interest.

 

Adding insult to injury, the Act was delayed 2 years, as a reluctant and resistant public service needed time to prepare itself.  The Government also reneged on a promise to give the Ombudsman extra funding to help embed the Act.

 

Even this amount of undermining was not enough.  During the first 18 months of the Act’s existence, the Government and its senior bureaucrats prepared an Amendment Bill in secret that would overturn all the major decisions in favour of openness made by the Ombudsman in that initial period.

 

The Government’s submission to the subsequent parliamentary review of the proposed amendments was essentially a handbook on the necessity of secrecy. The submission went to great pains to explain why FOI was a fundamental threat (or an anathema) to what the Government and public service appeared to view as the fundamental elements of the Tasmanian Westminster system. A journey towards continual improvement in transparency was not the take home message of the Government’s submission.

 

After this attempt to dismantle the 1991Act,  FOI was largely ignored for a decade. The six Ombudsmen (including acting Ombudsmen) between 1991 and 2007 made little impact upon public service behaviour and failed to change the culture of secrecy in the public service.

 

In August 2008 Premier Bartlett set in motion a review of the FOI Act.  The review resulted in the report Strengthening Trust in Government …Everyone’s Right to Know. The Report concluded:

 

“The review is also timely in regards to modernising the Act to better reflect the changing times in which we live and work. For instance when FOI was first established in Tasmania in 1991, we were at the dawn of the digital information age, access to computers was limited, the internet didn’t exist in Tasmania, emails were not part of normal government communication and the sophisticated information management tools we use now, were not available. Therefore, with improved information flow and increased community expectations around transparency, the old legislative framework is arguably no longer relevant or appropriate.” 

 

Most of the legislative recommendations from the 2008 Review were adopted. However, despite the best of intentions in the Review, the public service, political leadership and the Ombudsman have failed in the last 13 years to make any wide-reaching changes to the culture of secrecy and closed government in Tasmania.

 

In 2023, with very few exceptions, any one making requests for timely information to inform public debate, to scrutinise performance of government agencies or compare public statements with accurate government information will not be successful. Moreover, they are likely to be better served by relying on pre-1991 techniques – leaks and information from mates.

 

Many RTI Officers use the RTI Act as a Guide to Prevent Disclosure of Information. In practice, the Act is cut and diced to select clauses favouring non-release, with the Object Section of the RTI Act seemingly regarded as an optional part of the legislation. The public interest test is applied in a minimalist fashion to block release, time overruns are commonplace (despite relying on a processing period of 20 working days in a digital age) and very few current RTI Officers have received any significant training from the Ombudsman.

 

Meanwhile the RTI system continues to disintegrate around the Ombudsman. Since 1991, all eight of the Ombudsmen who have had the mission to make FOI/RTI work have struggled and have left their successors with a deteriorating system.  Despite the reboot in 2009, the system is now overwhelmed. The Government has partially re-addressed the lack of resources but not enough to ensure positive change.

 

The Ombudsman is aware of the problems. However, the office appears to struggle to make any significant changes. Particularly concerning is the fact that a number of the external reviews dealt with in the 2021-22 financial year (and several in the first part of 2023) identified issues with the manner in which the public authority had responded to a request for assessed disclosure. The express object of the RTI Act is clear in relation to its pro-disclosure focus, seeking to increase government accountability and acknowledging that the public has a right to the information held by public authorities acting on behalf of the people of Tasmania. The Ombudsman’s report notes that: 

 

“sadly, too often, adherence to this object is not evident in practice and a closed, and at times obstructive, approach is taken when responding to requests for assessed disclosure which come before my office. While this is not universal and definite progress has been made in some areas towards the adoption of a more open approach, there is room for major improvement and I urge all public authorities to do better and strive harder to achieve the object of the RTI Act in future.” Tasmanian Ombudsman Annual Report 2021/20223 at 30.

 

A plea to the better nature of the public service is a far cry from actually making a difference. The Premier, and even the most junior RTI Officer, should hang their heads in shame.  This desperate plea by the Ombudsman is both understated and far too timid.

 

My view is that the Ombudsman fails to lead by example both on transparency and performance, as evidenced by the dismal statistics on resolving reviews. In 2021/2022 the average time for reviews to remain open blew out to 622 days (thankfully that dropped significantly to 587 average days by 30 June 2022). When it takes close to 2 years for requests to be finalised, it is little wonder that a cultural shift towards openness has not been achieved. Both agencies and applicants, aware that any external review request to the Ombudsman is not going to be resolved quickly, know that there is little chance of a timely resolution of a request for transparency. Cynically, public servants seeking to exempt information understand that the delay game is likely to reap significant dividends. Even where the Ombudsman determines the information to be released, in many cases there is often further delay for agencies to actually release the information after an Ombudsman’s decision.

 

My understanding is that the Ombudsman has also failed to deliver regular and extensive training to RTI officers and even less to senior managers in the public service. The Ombudsman also struggles to recruit officers to undertake RTI reviews – in the 2022 Annual Report he notes he is advertising a position for the 4th time.

 

The Ombudsman fails, apart from calls to do better, to put pressure on underperforming agencies. For example: 

 

“While I acknowledge that both departments have advised of a significant increase in the volume of assessed disclosure applications, there are improvements that could be achieved by both departments in relation to issuing of decisions within the statutory timeframe, improving communication with applicants regarding delays and ensuring decisions are of high quality. Such improvements might reduce the volume of external review requests relating to these departments.”

 

The Ombudsman should be performing Own Motion investigations under the Ombudsman Act to identify the problems with RTI processing in some departments and make specific recommendations.  Additionally, the Ombudsman’s task is made more difficult due to the failure to update policies, guidelines and the RTI Manual. The Ombudsman appears to be only going through the basic motions of administering the RTI Act. The Ombudsman needs to reread Section 3 of the RTI Act and passionately reengage with the mission for Open Government.

 

Four RTI cases illustrate the negative impact of the Ombudsman on the functioning of the RTI system. 

 

Case 1 Woolnorth Wind Farm Holdings Pty Ltd and Department of Natural Resources and Environment (April 2023)

 

The Ombudsman’s decision was released on 28th April 2023. 

 

•           The RTI request was lodged by a journalist in early August 2019.

•           The agency made a decision within 13 days.

•           Decision was to release but needed a 3rd party consultation.

•           Agency still determined to release after consultation.

•           3rd party appealed on 13th September 2019.

•           Ombudsman released preliminary conclusion to release (either late March or early April 2023).

•           Agency accepted the preliminary conclusion – 3rd party responded 20th April 2023.

•           Ombudsman final decision to release 28th April 2023.

•           Apologised for “inordinate” delay. No reason given.

1.         The information requested included: 

 

·      records of eagle strikes across... all Tasmanian wind farms...;

·      any photographs of dead or injured eagles at windfarm locations across Tasmania...; and

·      reports of dead or injured eagles at Wind Farm zones submitted to DPIPWE [the Department] since the start of recording to the present. 

The photographs were the main sticking point for the 3rd party. 

 

Information delayed significantly undermines the RTI system. Agencies are normally blamed for this delay yet an Ombudsman who takes 27 months to make a decision, without justification, inflicts ongoing damage to the system. RTI officers and their superiors do not receive important feedback on their RTI performance and their interpretation of the Act or the Ombudsman’s guidance in relation to discretions.

 

The journalist has been denied information – and 27 months in the current world of media means that the particular journalist has moved on either in employment or coverage of this sector.  Interest in the potential story frizzles out or the Government’s version of the story remains unverified.

 

The RTI officers involved, the agency and all RTI officers throughout the state, have been denied access to the thinking and direction of the ombudsman on key sections of the Act. Quick feedback is critical to install and reinforce a culture of openness. Clear and prompt guidance is needed to allow RTI officers to improve their understanding and application of the Act.

 

The decision making efficiency of the RTI officers in the above case has not been rewarded or made known to the wider public who criticise agencies for time delays.

 

It becomes difficult, and embarrassing, for the Ombudsman to urge speedy decisions when their own track record (without explanation) is so abysmal. A 27 month delay in a world of quills and paper, legal research by hand and communication by letter may have been excusable. In a digital age, the delay is unfathomable and inexcusable.

 

Freedom of Information and Right to Information relies on champions. These champions include RTI officers who attempt to achieve the objects of the Act, while protecting sensitive information, heads of agencies and Premiers who demand open government, and an Ombudsman who lead by example. The internal processes of the Ombudsman Office in recent years reveals significant issues that severely weaken its capacity to drive open government in Tasmania.

 

Cases 2-4  Tenants Union Requests re Processing Delays within the Ombudsman Office

 

Since October 2019 the Tenants Union has put in three RTI requests to the Ombudsman Office to establish the internal workflow and progress of draft decisions. This was in response to knowledge that a number of applicants had been waiting for significant period of time for a decision.

 

The first request in 2019 revealed that there were 76 active cases on hand and 83% of these cases had reached the stage of being drafted ‘pending approval of a preliminary decision’. Two of these cases were drafted in May and July 2017 with no movement to the next stage of ‘Pending Approval of Final Decision’. 

 

The Ombudsman’s delegate provided a table outlining the Reference Number of the Decision and the date when the decision was drafted and the stage reached at the time of the RTI request from the Tenant’s Union. However, no reasons for the extraordinary delay (21 and 23 months) was provided.

 

In 2020 a follow up request was made. This time the Ombudsman’s delegate was not as helpful but did give a fuller picture of the stages of determining an RTI request. The Delegate’s response notes:

 

“A full external review process involves at least the following steps: 

1.         receipt of the application for external review and creating its file;

2.         establishing jurisdiction for an external review;

3.         obtaining all the relevant information from the public authority or Minister; 

4.         assessing the relevant information, and parties’ arguments, against the Act;

5.         preparing a case note documenting key points from steps up to and including particularly step

6.         preparing (a more developed) draft/preliminary decision;

7.         settling and making the draft/preliminary decision;

8.         seeking input on the draft/preliminary decision from the relevant party or parties pursuant to s48(1);

9.         preparing a final decision (including its statement of reasons);

10.       settling and making the final decision;

11.       distributing the final decision to the parties under s48(3);

12.       and publishing the final decision online under s49(5). “

 

In June 2020 the Ombudsman had 82 Active cases, 22 had reached Step 5, 18 were at  Stage 6, and 1 case had reached Stage 9. All others were at Stages 1-4.

 

In December 2021 another RTI application was made. This was responded to by a different delegate (the previous two having left the office) who was less informative and did not present a detailed list of cases like those provided by the previous two delegates.

 

What can be determined from the Tenant’s Union  RTI requests?

 

 The Ombudsman has a serious processing problem at Stages 7-12.  This has not been assisted by constant staff turnover. However, the Ombudsman hampered by staff turnover, the time taken to have officers come up to speed, and the complexity and size of files all present a serious inability to get high quality decisions out the door. 

 

Yet the Ombudsman is simply one of many, including journalists, members of parliament and citizens involved in critical areas of government policy to have surrendered to mission fatigue and assigned RTI to the dustbin.

 

A few generalisations on the performance of RTI officers. These generalisations do not apply to all RTI officers or all agencies but would apply, unfortunately, in the majority of cases. The generalisations are based on the performance in relation to non-personal affairs information. Improvements in a number of these areas would start to indicate progress towards more openness in government.

 

Since 1993:

•           The average time for processing requests has become longer.

•           The first step in reviewing an application is to identify possible exemptions.

•           The % of requested information that is released at first instance has become lower.

•           The % of requested information that is released at internal review has become lower.

•           The first step in reviewing an application is to identify possible exemptions.

•           Where the public interest needs to be considered, RTI officers put less effort in identifying reasons for release in the public interest compared to arguing against release.

•           The % of decisions overturned in full, and in part, by the Ombudsman has increased.

•           The amount of formal training received by RTI officers has decreased.

 

Conclusion

 

What are the first steps in the rescue of Tasmanian RTI:

 

1.         Concentrate on the culture and performance of Agencies – no need for major legislative changes at this stage.

2.         Ombudsman to lead by example.

3.         The Premier to issue a statement demanding RTI Officers and their Managers implement and achieve the goals set out in Section 3.

4.         Reduce the time periods for RTI decisions from 20 to 10 working days.

5.         RTI Officers to make Section 3 their mission statement.

In the last few months,  there are indications that the Ombudsman has come off the sidelines. His office  is starting to call agencies and RTI officers to account in the way they interpret the Act in general and more specifically, on how they apply the public interest test.  But clearly, this Ombudsman activation is both welcomed and far too long in the making.